Because of the pervasiveness of electronic storage devices, there is an ongoing controversy in the US regarding the inspection of electronic devices, particularly of those carried by travelers entering the US. The validity of this action has been argued on the basis of the “border search exception” which allows US government officials to search electronic devices at the border without a warrant and/or probable cause. The rationale behind this is the importance of upholding governmental interest in protecting its sovereign borders over and above the interest of the individual. In fact, in the US, there are circumstances of laptop searches which have been held by US courts as valid, pursuant to said border search exception.
I am not aware of any circumstance of laptop searches (specifically the inspection of the contents thereof) in the Philippines. But if this situation occurred in the Philippines, assuming pursuant to a valid search and seizure, it is compelling to know and be aware if it permissible and if there is a sufficient justification for its validity. Supposing there is a valid search and seizure, can a person be compelled to unlock his computer and go through the contents thereof?
The right of a person against unreasonable searches and seizure is recognized and protected by our Constitution, particularly, Sections 2 and 3 (2) of Article III. The requirements of a valid search and seizure are provided under Section 2 of the Constitution and are further reinforced and clarified by our jurisprudence. Under the Constitution, the people are guaranteed the right to be secure in their persons, houses, papers and effects against unreasonable searches and seizures of whatever nature and for any purpose, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized.[1] The constitution mandates that these must be carried out only on the strength of a judicial warrant, otherwise evidence secured therefrom is deemed tainted and thus, inadmissible in evidence for any purpose in any proceeding.[2] Nonetheless, there are well-recognized instances where searches and seizures are allowed even without a valid warrant.
However, even if there is a valid search and seizure, a person may not be compelled to unlock his laptop and go through the contents thereof on the basis of his right against self incrimination. This constitutional right proscribes the use of physical or moral compulsion to extort communications from the accused. Purely mechanical acts are not included in the prohibition since the accused does not thereby speak his guilt.
In the case of Beltran vs. Samson[3], the Supreme Court ruled that the right against self incrimination likewise protects an accused who is compelled to furnish a specimen of his handwriting relative to his prosecution for falsification. The Supreme Court further ruled in this case that “writing is something more than moving the body, or the hand, or the fingers; writing is not a purely mechanical and attention; and in the case at bar writing means that the petitioner herein is to furnish a means to determine or not he is the falsifier xxx” Applying this to the issue, this situation may be tantamount to a person being compelled to unlock his laptop, which is not a purely mechanical act. The individual under compulsion, by unlocking his laptop and going through the contents thereof, is giving a means for the authorities to gather evidence to implicate him.
Based on jurisprudence, the following circumstances are held to be not in violation of the right against self-incrimination: (1) a woman charged with adultery may be compelled to submit to physical examination to determine her pregnancy;[4] (2) an accused may be compelled to submit to physical examination and to have a substance taken from his body for medical determination as to whether he was suffering from gonorrhea which was contracted by his victim[5]; (3) to expel morphine from the mouth of the accused[6]; and (4) to have the outline of his foot traced to determine its identity with bloody footprints[7]. Likewise, finger printing, photographing, paraffin testing and DNA testing is not also considered as a violation of the right. In view of the foregoing, it may be argued that compelling a person to unlock his laptop may not fall within the ambit of the above circumstances as these circumstances are considered body in evidence. Compared to an individual who has been compelled to unlock his laptop, these circumstances are purely mechanical acts which do not make the accused speak of his guilt.
The essence of the right against self-incrimination is testimonial compulsion, that is, the giving of evidence against himself through a testimonial act. Taking the case of US vs. Arnold[8], the defendant herein sought the protection of the Fourth Amendment, following the search and seizure of his laptop by the U.S. Customs and Border Patrol Officer upon his return to the US. He argued based on the analogy that a laptop is similar to a home because of its capacity allows for the storage of personal documents in an amount equivalent to that stored in one’s home. He further argued that a laptop is like the “human mind” because of its ability to record ideas, e-mail, internet chats and web-surfing habits. This case may have a logical argument of comparing a laptop to a human mind considering its storage capability. In fact, it may store far more personal information than a human mind can keep and remember. Thus, on this basis, it may be considered that a person compelled to unlock his laptop is effectively giving a testimonial act on the potential incriminating files that may be retrieved from his laptop.
Note that the reason for the privilege is to avoid and prohibit positively the repetition and recurrence of the certainly inhuman procedure of compelling a person, in a criminal or any other case, to furnish the missing evidence necessary for his conviction, as ruled in the case of Bermudez vs. Castillo.[9] Thus, as stated in the same case, in order that the right may prove to be a real protection and not a dead letter, it must be given a liberal and broad interpretation favorable to the person invoking it.
[1] People of the Phil. vs. Evangeline S. Siton, et al., G.R. No. 169364, September 18, 2009
[2] Gregorio Amante, et al. vs. Bibiano Serwelas, G.R. No. 143572, September 30, 2005
[3] G.R. No. 32025, September 23, 1929
[4] Villaflor vs. Summers, 41 Phil. 62
[5] U.S. vs. Tan Teng, 23 Phil. 145
[6] U.S. vs. Ong Siu Hong, 36 Phil. 735
[7] U.S. vs. Salas, 25 Phil. 337
[9] 64 Phil. 483
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